Karnataka High Court
Sri N Rajanna vs State Of Karnataka on 26 June, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26th DAY OF JUNE, 2014
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL REVISION PETITION No.187/2014
C/W
CRIMINAL REVISION PETITION No.160/2014
IN CRL.R.P.NO.187/2014
BETWEEN:
SRI N RAJANNA
S/O. SRI. NARAYANNAPPA
AGED ABOUT 44 YEARS
R/A NO.181, SAJIDA BUILDING
ANJANI THEATRE BACK SIDE
CHINTAMANI TOWN,
CHIKKABALLAPUR DIST - 563 125
... PETITIONER
(BY SRI.PRAKASH SINGH B.J., ADV.)
AND:
STATE OF KARNATAKA
BY LOKAYUKTHA POLICE
CHIKKABALLAPUR - 562 101
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001 ... RESPONDENT
(BY SRI.BAHUBALI DANAWADI, SPL.P.P)
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THIS CRL.R.P. IS FILED U/S.397 AND 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 4.2.2014
PASSED BY THE PRL.DIST AND S.J. AND SPL. JUDGE FOR
LOKAYUKTHA CASES, CHICKKABALLAPUR IN P.C.NO.4/2009
THEREBY DISMISSING THE DISCHARGE APPLICATION FILED
U/S 239 OF CR.P.C FOR THE ALLEGED OFFENCES P/U/S
7, 13(1) (d) R/W 13(2) OF THE PREVENTION OF
CORRUPTION ACT, 1988.
IN CRL.R.P.NO.160/2014
BETWEEN:
K.DORAI
S/O. KRISHNA
AGED 43 YEARS
OCCUPATION:COMMERCIAL TAX OFFICER
R/O. NO.46, WEST PARK ROAD
KUMARA PARK EAST
BANGALORE - 560 001
... PETITIONER
(BY SRI.P.M.NAWAZ., ADV., FOR SMT.RASHMI JADHAV,
ADV.)
AND:
STATE OF KARNATAKA
BY LOKAYUKTHA POLICE STATION
CHIKKABALAPUR
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001 ... RESPONDENT
(BY SRI.BAHUBALI DANAWADI, SPL.P.P)
THIS CRL.R.P. IS FILED U/S.397 AND 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 4.2.2014
PASSED IN P.C.A. C.C.NO.4/2009 BY THE PRL.DIST AND
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S.J., CHICKKABALLAPUR THEREBY DISMISSING THE
DISCHARGE APPLICATION FILED U/S 227 OF CR.P.C BY
THE PETITIONER FOR OFFENCES P/U/S 7, 13(1)(d) R/W
13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988.
THESE CRL.RP's ARE COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
These petitions are directed against the order of the Special Judge, Chikkaballapura, rejecting the applications filed by the petitioners under Section 227 of Cr.P.C.
2. The facts relevant for the purpose of these petitions are as under:
The petitioner in Crl.R.P.No.160/2014 is a Commercial Tax Officer in the office at Chintamani. Whereas, the petitioner in revision petition No.187/2014 is a Commercial Tax Inspector in the said office. CW.1 - S.Raghavendra is the owner of M/s.Indian Madras Motors at Chellur Road, Chintamani and carries the business of motor vehicle spare parts. On 10.06.2008, K.Dorai - the -4- Commercial Tax Officer (Accused No.1) with his team conducted the test purchase on the oil in the shop. A penalty of Rs.2,000/- was imposed. The team conducted the inspection in the business premises and found several loose sheets of paper for having sold the materials without receipts and bills. The accounts were also not properly maintained. Therefore, the accused No.1 directed the owner (complainant) to appear in the office on the next day.
3. On 13.06.2008, when the complainant went to the office of accused No.1, he is said to have demanded a sum of Rs.1,00,000/- as bribe to set right the things and the complainant requested to reduce the sum. The demand was inclusive of penalty and illegal gratification. CW.1 - complainant recorded the conversation between himself and the accused No.1 in his mobile and approached the Lokayuktha police. On 16.06.2008, he informed about the demand and a complaint was registered against -5- accused No.1 for demand of illegal remuneration other than the tax etc., It is in the aforesaid circumstances that a trap was laid by Lokayuktha police on 16.6.2008, they were accompanied by the shadow witnesses and other persons and at that time when the complainant approached the accused No.1, a demand for a sum of Rs.25,000/- was made inclusive of tax of Rs.10,000/- and a receipt towards payment of tax for a sum of Rs.10,000/- was given. The accused No.1 instructed accused No.2 to receive the money on his behalf. Therefore, the complainant approached accused No.2 - the Commercial Tax Inspector (the petitioner in Crl.R.P.No.187/2014) who received the money and on a signal by the complainant, the Lokayuktha police laid the trap. This trap mahazar was drawn in the presence of the witnesses. The statements were recorded and ultimately, on the arrest of the petitioners and on completion of the investigation, the charge sheet has been laid against them for the offences under -6- Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act.
4. The petitioners submitted the applications under Section 227 of Cr.P.C, requesting for discharge on the ground that the material placed on record by the investigating agency is insufficient to frame a charge for the aforesaid offences. The learned Special Judge having heard both the parties, by the impugned order has rejected the applications. It is this order of the learned Special Judge which is challenged in these revision petitions.
5. I have heard the learned counsel for the petitioners and also the learned Special Public Prosecutor for Lokayuktha.
6. It is the contention of the learned counsel for the petitioner that there was collection of evidence prior to filing of First Information Report and therefore, the investigation -7- is vitiated and charge sheet has to be quashed. He submits that on the basis of such material collected, a charge cannot be framed against the petitioner for the aforesaid offences. He submits that the complainant was given tape recorder by the police before the registration of the crime and this conduct of the police in collecting the evidence prior to registration of FIR vitiates the proceedings and consequently a charge cannot be framed. It is the submission of the learned counsel for the petitioner in Crl.R.P.No.160/2014, that there is no offence of any demand and there is no material to show any demand and acceptance of gratification by the petitioner and therefore, rejection of the application is erroneous. He further submits that he was not in the possession of a sum of Rs.25,000/-, said to have been paid by the complainant. On these grounds, he sought for setting aside the impugned order.
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7. The learned counsel for the petitioner in Crl.R.P.No.187/2014, submits that there is no demand made by accused No.2 and the amount which is said to have been paid was on the instructions of accused No.1 to receive the said sum towards the tax and therefore, in the absence of any demand, a charge cannot be framed for the offence punishable under Section 7 of the Prevention of Corruption Act.
8. On the other hand, learned Special Public Prosecutor submits that there is no collection of evidence prior to registration of FIR and the conversation recorded in the tape recorder entrusted to the complainant subsequent to registration of the FIR reveals commission of the offences under Sections 7, 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act and therefore, he submits that the trial Court was justified in rejecting the applications. He submits that perusal of the statements of the complainant, -9- shadow witness and PW-2 reveals ample material on record to frame the charge. Perusal of the charge sheet reveals that on 30.03.2009, statement of one police constable by name Shivanna was recorded and it reveals that on 13.06.2008, when the complainant had approached the office in the evening at 05:15 p.m., he informed about the demand of illegal gratification and was intending to record it in tape recorder and that he does not have such a provision in his mobile and in the circumstances, the police constable said to have given his mobile which had the system of tape recorder and the complainant said to have inserted his SIM in mobile for the purpose of recording the said conversation. This statement of constable - Shivanna recorded on 30.03.2009, so also the additional statement of CW- 1 reveals the said fact. On the basis of this version, it is the submission of the learned counsel that the FIR was registered on 16.6.2008 and entrusting tape recorder on 13.06.2008, is collecting evidence prior to registration of the -10- FIR. On this aspect of the matter, in case, if the complaint of the CW-1 is perused there is no such averment in the complaint having entrusted the tape recorder by the police constable of Lokayuktha on that day. Even in the statement which was recorded at the earlier point of time, there is no such version in the statement of CW-1. It is only on 30.03.2009 i.e., after about 09 months of the incident, the additional statement was recorded in which such a version is placed on record. In the absence of any such allegation in the complaint or any recital of the said fact, I do not think that this subsequent statement would be of any help to the petitioners for seeking quashing of the charge sheet, FIR or for granting their applications.
9. Learned counsel has placed reliance on the decision of this Court in the case of SRI.RAMESH DESAI AND ANOTHER Vs. STATE OF KARNATAKA BY RAICHUR LOKAYUKTA P.S. reported in 2012 (3) KCCR 1738, wherein, prior registration of the FIR, a -11- tape recorder was given to the complainant who recorded the conversation and ultimately, FIR was registered. During the investigation, when the tape recorder sent to experts it was opined that voice recorded was not that of the complainant. That apart, their request for sanction was rejected by the Government. In the aforesaid circumstances, this Court held that the registration of FIR and consequent charge sheet requires to be quashed. Aforesaid principle does not apply to the facts on hand, for the reason that the material placed by way of additional statement and statement of Shivanna cannot said to be the collection of evidence prior to registration of FIR, as the said fact is not mentioned in the FIR. The law is laid down by the Apex Court in a decision reported in (2014) 1 SCC (Cri) 524 - (LALITA KUMARI Vs. GOVERNMENT OF UTTAR PRADESH AND OTHERS) and it is held in 120.6. and the same is extracted herein for the sake of convenience:
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"As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/family
disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal
delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay."
As held by the Apex Court, a preliminary enquiry can be conducted and that depends upon the facts and circumstances of each case. Particularly, in corruption case, the Apex Court has held that preliminary enquiry can be held by the police before the registration of the FIR. Further more, as could been seen from the facts on hand, though -13- the complainant orally had informed about the demand made by the petitioner for the registration of the First Information Report, they wanted to ascertain the version of the complainant and it may be for that reason the complainant had recorded the conversation. This conduct on the part of the Lokayuktha police, in my opinion, does not amounts to collection of the evidence before registration of the crime.
10. Even assuming for the time being that the system of tape recorder was put in the mobile of the complainant prior to its registration, if a complaint is filed along with such recorded conversation, that would be part of the FIR. Therefore, that does not come in the way of prosecution and on this ground, registration of FIR cannot be illegal.
11. When the Apex Court permits the police for holding a preliminary enquiry before the registration of the FIR in respect of the -14- cognizable offence, there is a valid refusal on the part of the Lokayuktha police in registering the complaint and as the Apex Court has held that it is the mandatory duty of the police to register the FIR, the same having been done by the police, there are no grounds to quash the registration of FIR. That does not mean that if there is entrustment of the tape recorder or system of tape recorder was put in the mobile of the complainant that itself is not a ground to reject the FIR.
12. Insofar as the non receipt of cash amount by accused No.1 is concerned, the perusal of statement of CW-1 would reveal that an amount of Rs.25,000/- is said to have been paid towards penalty as also illegal gratification. Accused No.1 instructed accused No.2 to receive the said amount on his behalf. This version of the prosecution is made available in the statement of CW-1, CW-2, so also accused Nos.1 and 2. It is on the basis of this fact, a charge sheet is laid against accused -15- No.1 for demand of the said sum and payment of the sum on his instruction to accused No.2. Merely because of accused No.1 was not in the possession of the amount that itself is in sufficient at this stage to seek an order of discharge.
13. Sofar as accused No.2 (petitioner in other revision petition) is concerned, he contends that there is no demand as could be seen from the provision of Section 20 of the Prevention of Corruption Act. Whenever any public servant accepts any gratification (other than illegal remuneration) unless contrary is proved it is assumed that he had accepted the said sum as gratification as contemplated under Section 7 of the Prevention of Corruption Act. Sofar as accused No.2 is concerned there is a charge under the aforesaid act and in view of this presumption and the fact that he received the money on behalf of accused No.1 on the date of the incident, at the instructions of the -16- accused No.1, there is a presumption in favour of the prosecution under the aforesaid provision.
14. Taking into consideration all the material which is placed on record during the investigation, I do not think the petitioners have made out any grounds for his discharge. The aforesaid contentions of the petitioners are to be considered by the trial court during the course of the trial, after recording the evidence. For these reasons, I do not find any grounds to interfere with the impugned order passed by the learned Special Judge. Consequently, the revision petitions are liable to be dismissed and they are accordingly dismissed.
15. In view of the disposal of these revision petitions, I.A.No.1/2014 does not survive for consideration. Hence, it is rejected.
SD/-
JUDGE HJ